Drafting effective cohabitation agreements

According to one article, more and more couples now are simply choosing to cohabit in lieu of marriage.  And in yet another study, the researchers found that couples who live together are more likely to break up and less likely to get married now than in the 1990s.  A census report cited by this article states that between 1967 and 2014, the share of Americans over 18 who are living with an unmarried partner went from virtually zero to nearly one-tenth.

These statistics illustrate the clear need for some kind of formal cohabitation agreement between unmarried partners.   Generally, a cohabitation agreement is a legal document – enforceable in court because it is nothing more than a contract between two consenting adults – to protect their rights as a couple while simultaneously protecting their rights as individuals. A cohabitation agreement differs from a prenuptial agreement in that the parties to the cohabitation agreement do not have an immediate intent to be married. They only wish to live together but want to clarify in clear, enforceable terms what his or her rights and obligations are.

In general, cohabitation agreements are used to determine each party’s separate property and to determine how the parties intend to purchase and identify joint property in the future. For example, property that they currently now own can be listed on an exhibit as his or her own separate property but what about property that they purchase after they move in together or property they purchase using joint funds? A cohabitation agreement can also determine how the parties intend to pay for separate and joint expenses.

A cohabitation agreement can even go so far as to spell out what a party wishes to leave his or her unmarried partner at the time of his or her death, although an estate planning attorney will likely advise them to make sure to memorialize that agreement in a will.

And while the cohabiting partners may attempt to memorialize a custody and visitation agreement in a cohabitation agreement, a good family law attorney will likely advise them that the best interest of the child – not this agreement – will generally be the determining factor.

If you are considering entering into a cohabitation agreement, the general rules for determining enforceability of a prenuptial agreement also apply – that is, both parties should be represented (or obtain waivers from the party opting out of using an attorney), both parties should give full disclosure of their assets and liabilities, both parties should be signing voluntarily and not out of duress, etc.  If you have questions about the terms of a cohabitation agreement, please contact Mary A. Zambreno.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.